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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

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UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

BREMERTON METAL TRADES COUNCIL
Union

and

NAVAL SUPPLY CENTER PUGET SOUND
Agency

Case No. 0-NG-1485

DECISION AND ORDER ON NEGOTIABILITY
ISSUES

I. Statement of the Case

This case is before the Authority because of a
negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). It concerns the negotiability
of 8 provisions of a negotiated agreement which were disapproved by the Agency
head in the course of review under section 7114(c) of the Statute.(1) Provision 1 limits the number of consecutive workdays
that an employee can be required to work. Provision 2 involves limited duty
assignments due to work injury or illness. Provision 3 pertains to the
membership of rating and ranking panels. Provision 4 designates the selecting
official for promotion actions. Provision 5 provides that only information
contained in official folders or files may be used in disciplinary actions.
Provision 6 requires reassignments or transfers to avoid or minimize the
effects of a reduction-in-force (RIF). Provision 7 requires reassignments and
training for employees who lose their jobs due to automation or technological
change. Provision 8 permits probationary employees to challenge procedural
matters relating to termination through the negotiated grievance
procedure.

For the reasons which follow, we find that Provisions 1
and 2 are nonnegotiable because they interfere with the right to assign work
under section 7106(a)(2)(B). Provision 3 is nonnegotiable because it interferes
with the right to assign work under section 7106(a)(2)(B) and with the right to
select under section 7106(a)(2)(C). Provision 4 is nonnegotiable because it
interferes with the right to assign work under section 7106(a)(2)(B). Provision
5 is nonnegotiable because it interferes with the right to discipline under
section 7106(a)(2)(A). Provision 6 is nonnegotiable because it interferes with
the rights (1) to assign employees under section 7106(a)(2)(A); (2) to assign
work under section 7106(a)(2)(B); and (3) to select employees under section
7106(a)(2)(C). Provision 7 is negotiable because it is an appropriate
arrangement under section 7106(b)(3). Provision 8 is nonnegotiable under
section 7117(a)(1) because it violates applicable law.

II. Procedural Matter

The Union contends that the Agency head's disapproval of
the agreement under section 7114(c) was untimely. Section 7114(c) provides that
an agency head must either approve or disapprove an executed agreement within
30 days from the date the agreement was executed. The Union contends that the
agreement was executed by the parties on September 25, 1987, and relies on a
copy of an annotated page from a calendar or diary in support of this
contention. Therefore, the Union asserts that since the Agency head's
disapproval of eight agreement provisions was dated November 3, 1987, the
Agency head disapproved the agreement beyond the prescribed 30-day time
limit.

We find, however, that the Agency head disapproved the
agreement within the 30-day time limit imposed by section 7114(c). Although the
Union claims that the agreement was signed on September 25, 1987, the signature
page of the parties' negotiated agreement submitted by the Union is dated
October 6, 1987. The Union offers no explanation for the discrepancy between
the date it alleges the agreement was executed and the date affixed to the
signature page of the agreement. Therefore, we must accept the date actually
appearing on the agreement as the better evidence of the execution date. When
calculated from the date on the agreement, October 6, 1987, the Agency head's
disapproval, dated November 3, 1987, is timely.

III. Provision 1

Article 9, Section 5. The employer agrees not to
work an employee over thirteen (13) consecutive days, except in cases of
unforeseen emergencies or circumstances in which case the union will be
notified.

A. Positions of the Parties

The Agency contends that Provision 1 interferes with its
rights under section 7106(a)(1) and (a)(2)(B) of the Statute to determine its
mission and to assign work. The Agency argues that its mission involves
providing logistical support to operational commands. According to the Agency,
the needs of the operating forces cannot always be foreseen, thereby creating
the need for extensive overtime. Thus, the Agency claims that accomplishment of
its mission would be impaired if it could alter employees' work schedules only
to meet heavy workloads in the situations prescribed by the provision. Further,
the Agency argues that by preventing the revision of employee work schedules to
accommodate workload requirements, the provision interferes with the Agency's
right to assign work.

The Union asserts that the term "unforeseen emergencies
or circumstances" used in the provision authorizes the Agency to assign work to
an employee for more than 13 consecutive days when required. The Union contends
that the provision is consistent with the language in 5 C.F.R. Part 610 and
does not prevent assignments longer than 13 consecutive days; it merely
requires a "basis" for such assignments. According to the Union, if management
needs to make such assignments, management may "invoke" the "emergencies" or
"circumstances" bases. Reply Brief at 2.

B. Analysis and Conclusion

Proposals which limit the number of consecutive days an
employee can be required to work are nonnegotiable. Such a limitation
interferes with management's ability to meet work needs and to assign employees
with particular skills to work when their skills are needed. A limitation on
the number of consecutive days an employee works is inconsistent with
management's right to determine when and by whom work would be performed. Such
proposals directly interfere with the agency's right under section
7106(a)(2)(B) of the Statute to assign work. See, for example,
Illinois Nurses' Association and Veterans Administration Medical Center,
Hines, Illinois, 28 FLRA 212, 225 (1987) (Proposal 5, section 5), (VA
Medical Center, Hines), petition for review filed as to other matters
sub nom.Veterans Administration Medical Center, Hines, Illinois v.
FLRA, No. 87-1514 (D.C. Cir. Sept. 23, 1987).

Provision 1 in this case imposes a similar limitation on
the Agency's authority to assign work. The provision prevents the Agency from
assigning work to employees who have worked the 13 previous days unless the
assignments are attributable to unforeseen emergencies or circumstances. Under
the terms of the provision, the Agency would be unable to formulate employee
schedules to accommodate unusually heavy workloads if it knew beforehand that
timely accomplishment of the work would require employees to work in excess of
13 consecutive days. Thus, the provision inhibits the Agency's ability to
determine when work will be performed. CompareTidewater Virginia
Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard,
31 FLRA 131, 136-39 (1988) (Provisions 5 and 6), reconsideration denied,
32 FLRA 98 (1988) (Provisions 5 and 6 constituted procedures for assigning
overtime because the provisions applied after the Agency had exercised its
right to assign overtime work and did not eliminate management's discretion to
assign overtime work to particular employees or groups of employees).
Therefore, by imposing conditions on the Agency's ability to make work
assignments, Provision 1 interferes with the right to assign work and is
nonnegotiable.

Because we find that Provision 1 directly interferes with
the right to assign work, it is unnecessary to address the Agency's argument
that the provision interferes with its right to determine its
mission.

IV. Provision 2

Article 12, Section 5.When an employee is
assigned a temporary medical limitation because of a work related injury or
illness, the Employer will make every effort to place the employee on a job,
within prescribed restrictions. The employee may request to use sick leave,
annual leave if available or leave without pay. For work connected illnesses or
injuries, the employee may apply for injury compensation as provided by laws.
[The underlined part of the provision is in dispute.]

A. Positions of the Parties

The Agency asserts that Provision 2 interferes with its
rights under section 7106(a)(2)(A) and (B) of the Statute to assign employees
and to assign work. The Agency contends that the disputed sentence prevents
management from assigning duties claimed by the employee to conflict "for any
reason and to any extent with limitations imposed by a medical authority."
Statement of Position at 3.

In addressing the Union's argument that the disputed
language is similar to that contained in an Agency instruction, the Agency
contends that the instruction itself is the exercise of a management right and
inclusion of its language in the provision would constitute an independent
limitation on that right. The Agency also characterizes as "clearly inaccurate"
the Union's contention that failure to include the language in the agreement
would result in less protection for unit employees. Statement of Position at
3.

The Union asserts that the disputed language is contained
in an Agency instruction. Deletion of that language from the agreement, the
Union contends, would deny unit employees rights granted to other Agency
employees.

B. Analysis and Conclusion

We reexamined the relationship between management's right
to assign work under section 7106(a)(2)(B) and employees' safety and health in
American Federation of Government Employees, AFL-CIO, Local 1625 and
Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105,
1119 (1988) (Provision 6) (NAS, Oceana). We stated that we would examine
proposals requiring management to assign, or to refrain from assigning, certain
duties for safety and health reasons to determine whether the proposals: (1)
require management to adhere to restrictions on work assignments imposed by the
agency's own medical authorities, or (2) impose restrictions independent of
and/or inconsistent with those of the agency's medical authorities. We stated
that proposals requiring that work be assigned in a manner consistent with
restrictions imposed by the agency's medical authorities would constitute
negotiable procedures under section 7106(b)(2). However, proposals restricting
the assignment of work on grounds independent of and/or in conflict with those
of the agency's own medical authorities would violate management's right to
assign work under section 7106(a)(2)(B).

We now apply the principles contained in NAS, Oceana
to Provision 2 in this case. The provision is operative when an employee
"is assigned a temporary medical limitation." The provision, however, does not
specify who assigned the "medical limitation." In the absence of any such
elaboration, we find that the provision would require management to follow
limitations established by medical authorities other than the Agency's own.
Therefore, the provision would impose restrictions on the assignment of work
independent of any which might be imposed by Agency medical officials.
Consequently, the provision interferes with management's right to assign work
under section 7106(a)(2)(B). SeealsoNational Federation of
Federal Employees, Council of Veterans Administration Locals and Veterans
Administration, 31 FLRA 360, 376-77 (1988) (Proposal 4, Section 8),
(Veterans Administration), petition for review filed sub nom.Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Apr. 22,
1988).

Finally, we reject the Union's suggestion that Provision
2 is negotiable because the provision's wording is consistent with a local
instruction. Even if this provision simply restates an existing local
instruction, as claimed by the Union, it nonetheless interferes with
management's right to assign work under section 7106(a)(2)(B) of the Statute.
Including the provision in the parties' agreement would prevent the Agency from
assigning duties in a manner inconsistent with the wording of the provision
during the life of that agreement. SeeAmerican Federation of
Government Employees, AFL-CIO, Local 1858 and U.S. Army Ordnance Missile and
Munitions Center and School (USAOMMCS), Redstone Arsenal, Alabama, 26 FLRA
102, 105 (1987) (Provision 2) (Redstone Arsenal).

For the reasons stated, Provision 2 is
nonnegotiable.

V. Provision 3

Article 14, Subsection 7b. When a panel is used
to rate bargaining unit members for unit positions, no member of the panel will
be in direct line of supervision over another panel member. Neither will any
panel member be the selecting official over the position for which applicants
are rated. The Unions will be afforded an opportunity to be present at all such
panel meetings.

A. Positions of the Parties

The Agency contends that the provision's requirement that
certain categories of persons be excluded from the rating panels interferes
with management's rights to assign work and to determine the personnel by which
Agency operations are conducted under section 7106(a)(2)(B) of the Statute. The
Agency argues further that the requirement that a Union observer be present
during the rating process impedes management's ability to decide and act with
respect to its right to select from among properly ranked and certified
candidates or from any other appropriate source under section
7106(a)(2)(C).

The Union asserts that Provision 3 is consistent with a
local instruction prescribing the composition of rating panels. The Union
contends that rating panels are not part of the selection process. According to
the Union, such panels constitute the initial phase of rating and ranking, a
mechanical process used by the Civilian Personnel Office. The Union also states
that its observer is "relegated to the role of observer in the same manner as
an EEO Representative." Reply Brief at 2.

B. Analysis and Conclusion

The Union contends that the panel in question is not part
of the selection process, but rather concerns the "mechanical" initial phase of
rating and ranking. The Agency, however, argues that the panel is involved in
the rating of applicants for positions, "a deliberative process that requires
the exercise of judgment and is an integral part of management's
decision-making processes." Statement of Position at 4. The Union's reply brief
made no reference to the Agency's description of the panel. Accordingly, we
accept the Agency's characterization of the panel as an integral part of the
process of selecting candidates to fill vacant positions.

The management rights enumerated in section 7106 of the
Statute include more than the right to decide to take the final actions
specified. The exercise of these rights also encompasses the right to take
preliminary actions leading to the exercise of the right, including discussion
and deliberation concerning the decision to exercise the right. SeeNational Treasury Employees Union and Department of Health and Human
Services, Region V, Chicago, Illinois, 28 FLRA 647, 647-49 (1987)
(Health and Human Services, Region V) and the cases cited
therein.

Union participation in a committee's work involving
deliberations regarding the exercise of management rights interferes with the
exercise of the underlying management rights by allowing the union to interject
itself into the deliberative process. SeeAmerican Federation of
Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury,
Bureau of the Mint, 19 FLRA 640, 643-45 (1985) (Provision 3) (union
participation on promotion rating panel interferes with management's right to
select); and National Federation of Federal Employees, Local 1431 and
Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998
(1982) (union representation on Professional Standards Board and Position
Management Committee interferes with management rights under section 7106 of
the Statute). Further, when a committee's work involves deliberations over the
exercise of management rights, a union observer's presence, whether in an
active or passive role, interferes with an agency's right to engage freely in
internal discussions and deliberation prior to deciding to act pursuant to
section 7106 of the Statute. See, for example, Health and
Human Services, Region V, 28 FLRA at 648-49.

Provision 3 authorizes the Union's presence on a rating
and ranking panel when that panel rates unit employees for unit positions.
Provision 3 thereby allows the Union to interject itself into the deliberative
process by which the Agency selects an employee for promotion under section
7106(a)(2)(C). Thus, Provision 3 is nonnegotiable because it interferes with
the Agency's right to select under section 7106(a)(2)(C) of the
Statute.

Additionally, Provision 3 seeks to bar certain categories
of management officials from participating in the rating and ranking panel's
work. The provision prohibits the selection of any person who supervises
another panel member and disqualifies the selecting official from serving on
the panel.

In National Treasury Employees Union and Department of
the Treasury, Financial Management Service, 29 FLRA 422, 423-24 (1987)
(Financial Management Service), we reviewed a provision similar in
effect to Provision 3. Provision 2 in Financial Management Service
concerned the composition of merit staffing panels which advise selecting
officials by rating and ranking candidates for selection for promotion. The
disputed provision, among other things, required that the agency select
panelists from organizational elements other than those supervised by the
selecting official. It also prohibited the selection of Union officers or
stewards or any employee at a lower grade than the position to be
filled.

In deciding the negotiability issue, we first noted that
panel appointees were performing work for the agency and that their selection
involved the assigning of work under section 7106(a)(2)(B) of the Statute.
Based on that view of the relationship between the panel's composition and the
exercise of the identified management right, we concluded that the disputed
provision, by prohibiting the assignment of work--that is, membership on the
panel--to certain employees, was nonnegotiable because it interfered with the
section 7106(a)(2)(B) right to assign work.

Similarly, Provision 3 concerns a group established by
management to carry out portions of the process of identifying candidates to
fill vacancies. Because Provision 3 would prevent management from selecting
specified persons as members of that group, Provision 3, like Provision 2 in
Financial Management Service, is also nonnegotiable because it
interferes with management's right to assign work under section 7106(a)(2)(B)
of the Statute.

Like Provision 2, the Union's suggestion that the wording
of Provision 3 is consistent with a local instruction governing the composition
of such panels does not lead us to conclude that Provision 3 is negotiable.
Management rights are involved in determining both the membership of the panel
and the functions carried out by the panel. Even if this provision simply
restates an existing local instruction, as claimed by the Union, it nonetheless
interferes with management's rights under section 7106(a)(2)(B) and (C) of the
Statute. Including the provision in the parties' agreement would prevent the
Agency from changing either the composition or the function of the panel during
the life of that agreement. SeeRedstone Arsenal at
105.

Provision 3 is, therefore, nonnegotiable.

VI. Provision 4

Article 14, Subsection 9d. The selecting
official will be the first-line supervisor unless otherwise designated by the
Department Director.

A. Positions of the Parties

The Agency asserts that Provision 4 interferes with its
right under section 7106(a)(2)(B) to assign work by designating the selecting
official in promotion actions and by identifying the official authorized to
make exceptions to the selecting official requirement.

The Union points out that Provision 4 duplicates a
published local instruction.

B. Analysis and Conclusion

The designation of a particular management official to
perform specified tasks is inconsistent with management's right to assign work
under section 7106(a)(2)(B) of the Statute. See, for example,
Veterans Administration, 31 FLRA at 366 (Proposal 2, Section
2).

The first clause of Provision 4 designates the official
the parties might normally expect to make a selection for promotion. Further,
the provision permits management to designate another selecting official should
it choose to do so. However, by assigning to the Department Director the
authority to designate as selecting official someone other than the immediate
supervisor, the provision interferes with management's right to assign work
under section 7106(a)(2)(B) and is outside the Agency's duty to bargain.
CompareVeterans Administration, 31 FLRA at 379 (Proposal 5,
Section 2) (Section 2 permitted named official or designee to perform specified
action found to be negotiable). We note, however, that the defect in this
provision could be cured by removing the reference to the Department Director.
SeeRedstone Arsenal at 81.

We also reject the Union's argument that the provision is
negotiable because it employs the same wording as a local regulation. Including
this provision in the parties' agreement would prevent the Agency from
assigning to an official other than the District Director the authority to
designate the selecting official during the life of that agreement. SeeRedstone Arsenal at 105.

VII. Provision 5

Article 17, Section 5.In the case of any
formal written disciplinary action, nothing contained in any other than an
official folder or files may be used to substantiate the action. Individual
supervisory files, maintained with the employee's knowledge of the file and its
contents, may also be used to substantiate such action. All documents on which
the decision to take disciplinary action is based will be made available to
employees and, if the employee requests, to his/her representative. [The
underlined portion of the provision is in dispute.]

A. Positions of the Parties

The Agency contends that Provision 5 interferes with its
right to discipline under section 7106(a)(2)(A) of the Statute, by barring the
use of all appropriate sources of information in taking disciplinary
actions.

The Union asserts that the provision's wording was "taken
from" a local and an Agency instruction. Reply Brief at 2. It also contends
that the provision does not prevent management from taking disciplinary action.
Rather, according to the Union, the provision outlines a method to be used in
documenting a disciplinary action.

B. Analysis and Conclusion

We find that this provision would limit management's right
to discipline employees under section 7106(a)(2)(A). This provision does not
concern an employee's right to review information used to support a
disciplinary action. See, for example, 5 C.F.R. ºº
752.203(b) and 752.404(b). Rather, the provision would deny management the use
of all appropriate sources of information to support a disciplinary action. For
example, under this provision, information contained in individual supervisory
files could not be used even if that information was subject to review by an
employee or his/her representative. Further, tangible evidence which could not
be filed in an official folder or file could not be used to substantiate a
disciplinary action. Consequently, by limiting the source of information used
to substantiate a disciplinary action against an employee, Provision 5 directly
interferes with management's right to take disciplinary actions against
employees under section 7106(a)(2)(A). For the reasons discussed in connection
with Provisions 2, 3 and 4, we reject the Union's argument that Provision 5 is
negotiable because it is "taken from" an Agency instruction.

VIII.Provision 6

Article 21, Section 1. The employer agrees to
make a reasonable effort to avoid or minimize a reduction in force through
reassignment or transfer of employees to available vacancies for which they are
qualified or for which they can be trained within a reasonable period in
consonance with the level of the position to be filled.

A. Positions of the Parties

The Agency asserts that Provision 6 is nonnegotiable
because it interferes with the rights to assign work and to select from any
appropriate source under section 7106(a)(2) (B) and (C) of the Statute.

The Union contends that the provision conforms to Office
of Personnel Management (OPM) regulations prescribing measures to be taken to
avoid or minimize the effect of a reduction-in-force (RIF) prior to seeking
OPM's approval to conduct a RIF.

B. Analysis and Conclusion

1. Provision 6 Conflicts with Management's Rights to
Assign Employees, to Assign Work and to Select Employees

Provision 6 requires the Agency to exert "a reasonable
effort" to fill available vacancies from a single source, specifically from
among current employees who are qualified or could be trained "within a
reasonable period" to fill the positions. By providing for filling positions by
reassignment or transfer, Provision 6 directly interferes with management's
right, in filling vacancies, to select from any appropriate source under
section 7106(a)(2)(C)(ii) of the Statute. See, for example,
American Federation of Government Employees, AFL-CIO, Local 2635 and Naval
Communications Unit Cutler, East Machias, Maine, 30 FLRA 41, 42-45 (1987)
(Provision 1) (Naval Communications Unit Cutler).

Additionally, we find that the disputed provision
interferes with management's right to assign employees to positions under
section 7106(a)(2)(A) because it would require that management reassign
particular employees to vacancies. Under the provision's terms, management
would be unable, for example, to fill vacancies with internal candidates from
organizational elements unaffected by a reduction-in-force (RIF). Consequently
the provision would limit the field of employees eligible for assignment to
vacancies and would directly interfere with the right to assign employees.
SeeAmerican Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Immigration and
Naturalization Service, 27 FLRA 467, 480-81 (1987) (Provision
6).

Further, proposals which require an agency to provide
training for its employees violate management's right to assign work under
section 7106(a)(2)(B). Since Provision 6 requires the Agency to train employees
so that they can fill vacancies, the provision directly interferes with
management's right to assign work under section 7106(a)(2)(B). See,
for example, NAS, Oceana, 30 FLRA 1105, 1114-16 (Provision
4).

The use of the phrase "a reasonable effort" does not
limit the effect of the provision. Decisions as to whether the Agency had made
a reasonable effort would, if challenged by the Union, be subject to arbitral
review. Therefore, the provision constitutes a substantive interference with
and conflicts with the cited management rights involved in the filling of
vacancies. See, for example, NAS, Oceana at
1113.

2. The Provision Does Not Constitute a Negotiable
Appropriate Arrangement

The Union did not assert that Provision 6 should be
considered as a proposal to assist employees adversely affected by management
action. However, the Authority consistently has considered proposals relating
to the effect of a RIF on employees under section 7106(b)(3) because the
adverse effect of a RIF on employees is clear. See, for example,
International Brotherhood of Electrical Workers, Local 2080 and Department
of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA
347, 354-60 (1988) (Provisions 3 and 4) (U.S. Army Engineer District,
Nashville).

In our view, Provision 6 is intended as an arrangement to
ameliorate the adverse effects--demotion or release from employment--on
employees resulting from management's exercise of its right to conduct a RIF.
Proposals requiring an agency to provide training to employees in the context
of a RIF have been found to constitute negotiable appropriate arrangements
under section 7106(b)(3) where those proposals preserved management's
discretion to determine whether employees would be trained, the extent and type
of training, the numbers of employees to be trained given available funding and
training authority, and the methods and means by which the training would be
accomplished. See, for example, International Plate Printers,
Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and
Department of the Treasury, Bureau of Engraving and Printing, Washington,
D.C., 25 FLRA 113, 140 (1987) (Provision 32). Although the precise wording
of Provision 6 does not state the safeguards as set forth in Provision 32 in
Bureau of Engraving and Printing, there is nothing in the record which
indicates that this provision is not also intended to preserve management's
discretion as in Bureau of Engraving and Printing. SeealsoNaval Communications Unit Cutler, 30 FLRA at 45.

Nevertheless, we find that Provision 6 does not
constitute a negotiable appropriate arrangement under section 7106(b)(3). The
Union's explanation and the wording of the proposal are silent as to whether
management would retain authority to decide to fill or not fill vacancies. In
fact, the record indicates that management would not retain that right. The
Agency argues that the provision does not permit management to decide not to
fill a vacancy. The Union did not rebut that crucial argument in its reply
brief. Moreover, the Union did not elaborate on the meaning of adjective
"available" as it related to vacancies, and that adjective, standing alone, is
not a basis for finding that the vacancies involved would only be those
management decided to fill. Therefore, based on the record, we find that the
vacancies referred to in the provision would be any vacancies in the bargaining
unit irrespective of whether the Agency decided to fill them.

We have reviewed proposals requiring management to fill
vacancies with qualified employees in surplus positions. Where these proposals
took effect without regard to whether management had decided to fill the
vacancies, we have found that the harm to management outweighed the benefit to
employees and, consequently, interfered with management's rights. See,
for example, U.S. Army Engineer District, Nashville, 32 FLRA 347,
354-60 (1988) (Provisions 3 and 4).

Because Provision 6 does not preserve management's
discretion to determine whether to fill vacancies we find that the provision
excessively interferes with the Agency's rights to assign employees under
section 7106(a)(2)(A) and to make selections for appointments under section
7106(a)(2)(C) and is not an appropriate arrangement under section 7106(b)(3).
SeealsoNational Association of Government Employees, Local
R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA 905,
908 (1986) (Proposal 2).

IX. Provision 7

Article 21, Section 3. It is agreed that the
Employer, to the extent consistent with the activity's manpower requirements,
will make a reasonable effort to reassign employees whose positions are
eliminated due to automation or adoption of labor saving devices. It is agreed
that the Employer will make reasonable effort to train employees, where
necessary for reassignment, whose positions are eliminated because of
automation or adoption of labor saving devices, provided cost of such training
is not prohibitive, and if the employee has the necessary aptitude as
determined by the Employer.

A. Positions of the Parties

The Agency asserts that Provision 7 would limit its
ability to "staff" as it sees fit in the event of technological change.
Statement of Position at 9. Therefore, it argues that the provision interferes
with the management rights to assign work and to select from any appropriate
source under sections 7106(a)(2)(B) and (C) of the Statute.

The Union asserts that the provision was originally
proposed by management rather than by the Union. The Union also contends that
the provision "contains no more objectionable language nor imposes no more
restriction" than another provision which the Agency found to be
unobjectionable. Petition for review at 3.

B. Analysis and Conclusion

1. The First Sentence of Provision 7

The first sentence of Provision 7 provides that consistent
with manpower requirements, the Agency will make reasonable efforts to reassign
employees whose positions are eliminated due to technological change. Although
the provision does not state where affected employees would be reassigned, we
conclude, in the absence of any indication otherwise, that the provision is
intended to require reassignment of employees to vacant positions. Thus, like
Provision 6, by providing for filling positions by reassignment, Provision 7
directly interferes with management's right in filling vacancies, to select
from any appropriate source under section 7106(a)(2)(C)(ii) of the
Statute.

Additionally, like Provision 6, we find that Provision 7
interferes with management's right to assign employees to positions under
section 7106(a)(2)(A) because it would require that management reassign
particular employees to vacancies. Under the provision's terms, management
would be unable, for example, to fill vacancies with internal candidates from
organizational elements unaffected by a technological change. Consequently, the
provision would limit the field of employees eligible for assignment to
vacancies and would directly interfere with the right to assign
employees.

The Union made no claim that the first sentence of
Provision 7 is intended as an appropriate arrangement. However, we find that
the first sentence of Provision 7, like Provision 6, is aimed at ameliorating
the impact on employees of management's decision to introduce technological
changes. The results of such changes reasonably could be assumed to include
demotions and loss of employment. Thus, the first sentence of Provision 7, like
Provision 6, is an arrangement for adversely affected employees.

Contrary to the Agency's position, and unlike Provision 6,
we do not construe the first sentence of Provision 7 as divesting management of
its authority to fill or not fill vacancies. We believe that the statement that
the first sentence applies "to the extent consistent with the activity's
manpower requirements," provides a sufficient basis to conclude that management
may continue to decide whether to fill vacancies, because we view "manpower
requirements" as including the authority to decide whether vacancies should be
filled. Additionally, we find no basis in the provision's wording for
concluding that the Agency would be obligated to waive qualifications
requirements in filling vacancies under the circumstances covered by the
provision. To the contrary, the statement that the provision must operate in a
manner consistent with manpower requirements supports the conclusion that
management retains the right to select only qualified employees because the
right to decide what skills are needed to perform the Agency's work is also an
inherent aspect of establishing manpower requirements.

In NAS, Oceana, 30 FLRA at 1116-19, we found
Provision 5 which required the agency to use continuing vacancies, "to the
maximum extent possible" in placing employees who would otherwise be separated
in a RIF to be nonnegotiable. We decided that Provision 5, in limiting the
discretion to decide whether or not to make reassignments, interfered with
management's right under section 7106(a)(2)(C) to make selections for
appointments. Nevertheless, we found that Provision 5 was an appropriate
arrangement. We noted that the provision's objective was to mitigate the
adverse effects, specifically demotion or loss of employment, on employees
caused by the exercise of a management right. In balancing the competing
interests, we noted that management retained authority to decide whether to
fill vacancies. It also retained the right to determine what qualifications
were necessary to accomplish the work assigned to the positions and which
employees had those qualifications. On the other hand, the impact of
management's actions on unit employees was severe. Therefore, on balance we
found that the provision was an appropriate arrangement.

Provision 7, like Provision 5 in NAS, Oceana,
preserves management's right to fill or not fill vacancies and does not require
management to select unqualified employees. Accordingly, based on the reasoning
more fully set forth in NAS, Oceana, we find that the first sentence of
Provision 7 is an appropriate arrangement under section 7106(b)(3).

2. The Second Sentence of Provision 7

The second sentence of Provision 7 would require the
Agency to provide training for employees displaced due to technological change
to qualify them for other jobs. Proposals requiring management to provide
training during duty hours to enable employees to perform a new specialty or
perform in a replacement position of equivalent significance and/or grade
conflict with management's right to assign work. NAS, Oceana, at 1114-16
(Provision 4); American Federation of Government Employees, Local 3231 and
Social Security Administration, 22 FLRA 868, 872-73 (1986) (Proposal 3)
(Social Security Administration).

The second sentence of Provision 7 does not indicate
whether management is to provide the training during duty hours. Therefore,
under the sentence's terms, training may be required during duty hours.
Consequently, the second sentence of the provision is to the same effect as
Provision 4 in NAS Oceana and to the same effect as Proposal 3 in
Social Security Administration. Accordingly, we find that the second
sentence of Provision 7 interferes with the right to assign work.

The Union made no claim that the second sentence of
Provision 7 is intended as an appropriate arrangement. However, we find that
the second sentence of Provision 7, like the first sentence of Provision 7, and
like Provision 6, is aimed at ameliorating the impact on employees of
management's decision to introduce technological changes. The results of such
changes reasonably could be assumed to include demotions and loss of
employment. Thus, the second sentence of Provision 7, like the first sentence
of Provision 7, and like Provision 6, is an arrangement for adversely affected
employees.

The second sentence of the provision would require the
Agency to make reasonable efforts to train affected employees. It does not
prescribe the characteristics of the training. Management is free to decide on
the type of training, whether it will be in the classroom or on the job, and
the time at which the training will be conducted. Additionally, the Agency's
right to assign work or to evaluate employees' performance is not conditioned
upon the Agency's having first provided the prescribed training. In light of
these facts, on balance we find that the second sentence of Provision 7 does
not excessively interfere with management's right to assign work under section
7106(a)(2)(B). Consequently, the second sentence of Provision 7 is within the
duty to bargain as an appropriate arrangement under section 7106(b)(3). NAS,
Oceana at 1114-16. SeealsoAmerican Federation of
Government Employees, AFL-CIO, Local 1625 and Non-Appropriated Fund
Instrumentality, Naval Air Station, Oceana, Virginia, 31 FLRA 1281, 1282
(1988) (Proposal 1).

Based on the foregoing, Provision 7 does not excessively
interfere with management's rights and is an appropriate arrangement within the
meaning of section 7106(b)(3).

X. Provision 8

Article 24, Subsection 2i. This procedure applies
to all matters subject to grievance procedures allowable under the Civil
Service Reform Act of 1978 (Public Law 95-454) except:

. . . . . . .

i. Removal of probationary employees during the twelve
(12) month probationary period except whenthe basis of the grievance
concerns proceduralmatters [the underlined part of the provision is
at issue.]

A. Positions of the Parties

The Agency contends that by affording probationary
employees procedural protections which may be litigated under the negotiated
grievance procedure, Provision 8 violates both law and Government-wide
regulation.

In United States Department of Justice,
Immigrationand Naturalization Service v. FLRA, 709 F.2d 724 (D.C.
Cir. 1983) (Department of Justice), the United States Court of Appeals
for the District of Columbia Circuit held that the termination of probationary
employees could not be included within a negotiated grievance procedure. The
Court found that, in the Civil Service Reform Act of 1978, Congress expressly
preserved an agency's discretion to remove summarily a probationary employee.
Congressional intent, according to the Court, was to create a scheme in which
probationary employees would receive some minimal due process, such as a
limited explanation of the reasons for discharge, while preserving from review
an agency's decision to remove a probationary employee. SeealsoNational Treasury Employees Union v. FLRA, No. 87-1166, slip op. at 8
(D.C. Cir. June 3, 1988), where the United States Court of Appeals for the
District of Columbia Circuit reiterated its conclusion in Department of
Justice that Congress intended "that a single additional forum available to
other federal employees--a negotiated grievance procedure--would remain
unavailable to probationers."

Based on these court decisions and our prior holdings,
see, for example, NAS, Oceana, 30 FLRA at 1127-28, we
conclude that Provision 8 is inconsistent with law and regulations.
Consequently, it is nonnegotiable under section 7117(a)(1) of the
Statute.

XI. Order

The petition for review as to Provisions 1, 2, 3, 4, 5,
6, and 8 is dismissed. The Agency must rescind its disapproval of Provision
7.(2)

1. In its statement of position, the Agency withdrew its
allegation that 2 additional provisions were nonnegotiable. The Agency
identified the provisions as Article 3, Section 2 and Article 8, Section 4.

2. In finding Provision 7 to be negotiable, we make no
judgment as to its merits.